(Amended April 12, 2019)
If you, Shipper (including but not limited to its agent, subcontractor, or anyone else that is accessing or using the Opus9 system or products on behalf of or for the benefit of Shipper or Shipper’s cargo(s) – together Shipper or User) do not agree to any of the Terms of Conditions, PLEASE DO NOT register with or use Opus9. Opus9 has the exclusive right to change any terms or conditions at any time without prior notice or consent. Users have the opportunity to read and accept the User Agreement when booking a load. Any new changes in this agreement won’t impact existing bookings. You may not access or use the service if you are not at least 18 years old.
By subscribing, registering with, providing certain information or content, or using OPUS9 services and products (aka ‘website’ or ‘site’ or ‘Opus9.com’), you, as User of the service provided by Opus9, accepts and agrees to all terms, conditions, and notices contained or referenced herein and throughout the website.
Shipper may not need to register with Opus9 prior to searching for a quote, selecting a quote and booking a load. However, once Shipper, its agent, or anyone accessing Opus9, or any information or database therein, regardless of the existence of formal registration, the terms of this User Agreement shall be applied in favor of Opus9 without any restriction or limitation.
Opus9 does NOT intend to and shall not be deemed in any way to provide any kind of shipping or transportation services, or to act or represent in any way as a carrier, courier, shipper, shipping agent, or freight forwarder. Opus9 shall not be deemed to be an agent, a partner, or a joint venturer of Carrier or Shipper for any reason. Carrier shall not be deeded to be subcontractors or employees of Opus9 for any reason. Therefore, Opus9 shall not be responsible for any freight transportation service, including but not limited to any damage to cargo and to any injury (including but not limited to third party injury or death), expenses, or losses that may be contributed, caused by, or involving the Carrier, Shipper, or Shipments.
A. General. Opus9, as a technology platform, brings together Shippers and Carriers for the transportation of Shipments to, from, and between points in the United States (excluding Alaska and Hawaii), enabling Shippers to post details of desired and requested shipping and transportation needs, Carriers to accept such requests, and both Shippers and Carriers to book, handle, and manage the consummated Shipments.
Again, Opus9 is not and cannot be a Shipper or Carrier, and does not and will not function as a property broker or freight forwarder, as those terms are defined in the Interstate Commerce Act, 49 U.S.C. § 13102 and 49 C.F.R. §371.2, in furnishing or facilitating Service under this Agreement. “User” in this agreement means any user of the Service or the Platform; it may be a Carrier or a Shipper, or their respective agents or freight forwarders should be User and subject to the terms of this Agreement.
B. Shipment Posting, Acceptance, and Completion Process.
(1) Initiating the Shipment.
Opus9 does not guarantee the Shipper’s requests to be fulfilled whole or in part for any reason, including those of Carrier. Opus9 also reserves the right to cancel the load or booking without any prior notice or need for anyone’s consent for any reason, including but not limited to technical issue, or shortage or unavailability of Carrier(s).
Once Shipper has procured Carrier, and the Carrier has accepted a rate confirmation, then Opus9 notifies Shipper that its Shipment has been “booked”, and a “Bill of Lading” generated by Opus9 will be sent to the Shipper and the Carrier, via email. The subject Bill of Lading shall be a receipt of trucking service(s) and be a term of the transaction amongst involved parties. But the said Bill(s) of Lading shall not a title or interest to the Shipments.
The terms and descriptions of the applicable Bill of Lading also define the agreement between a shipper and carrier for the purpose of delivering a Shipment. After this point, the Carrier and Shipper are legally bound by the terms in the Bill of Lading and by any applicable sections in this Agreement.
Regardless of the descriptions of Bill of Ladings, Opus9 is not responsible for any Shipment, its description, nor actual or contractual disputes or damages or remedies of its transportation that shall be solely between Shipper and Carrier. Opus9 does not guarantee that a Carrier will accept any Shipment request or booking.
(2) Completing the Shipment.
User consents and authorizes Opus9 to collect and store the relevant information about shipment and other related information from the Shipper and Carrier. Once the Carrier completes delivery of the Shipment, Carrier shall timely upload the proof of delivery that has been physically signed by the authorized recipient or consignee (“Proof of Delivery”). After delivery, Shipper will receive a Proof of Delivery from Opus9, electronically.
(3) Cancellation or Modification of Shipment. Shippers shall be free to cancel or modify a booking 24 hours before the pickup date without any penalty. Within 24 hours of the pickup date, Opus9 may charge a truck-order-not-used fee, Shipper shall be responsible to pay for such charges or penalties.
II. EXCLUDED or PROHIBITED SERVICES
Certain transportation arrangements and commodities are not within the scope of the Service and is, therefore, beyond the scope of this Agreement. The following transportation arrangements and commodities are excluded from the Service:
- Intermodal (involving two or more modes of transportation) shipments
- international shipments (i.e. those having an origin or destination outside of the Continental United States)
- household goods
- hazardous materials, dangerous goods, chemicals
- oversize or overweight loads requiring special highway permits and/or escorts
- illegal goods
- firearms, explosives, ammunition
- boats and mobile homes
- garbage, refuse, trash
III. PAYMENT TERMS
A. Shipment Reservation
Credit Card Authorization
Terms hereunder describes a single shipment reservation and payment for explanatory purposes but Shipper accepts that the description applies to all shipments requested and delivered by Opus9 for Shipper.
By accepting the terms and conditions hereunder and a submitting shipping request to Opus9, Shipper allows Opus9 to make an "authorization" on the Shipper supplied credit card equal to the “authorized amount” of the shipment.
This authorization is done by our credit card processor, and renders the “authorized amount” as unavailable and the authorization amount is specifically reserved for payment for this shipment if Shipper does not pay within the payment terms and the shipment goes into ‘in default’. This authorization exists on the Shipper credit card until any of the following:
- Opus9 clears the authorization
- Shipper initiates a payment to Opus9 for payment of shipment delivery
- When the credit card processor drops the authorization
- When Opus9 charges the shipper for an in default shipment
- When Opus9 charges a fee incurred due to cancelation of shipment within 24 hours of a pickup
For TL shipments: the authorized amount will consist of the base price of the shipment (aka “freight charge”), bookable accessorial costs and another $300 usd to cover for the cost of any other possible surcharges for and during the service(s) provided to Shipper and its shipment(s) by the Opus9 and Carrier (together “total charges”).
For LTL shipments: the authorized amount will consist of the base price of the shipment (aka “freight charge”) and accessorial costs to cover for the cost of any other possible charges for and during the service(s) provided to Shipper and its shipment(s) by the Opus9 and Carrier (together “total charges”).
For drayage shipments: the authorized amount will consist of the base price of the shipment (aka “freight charge”), bookable accessorial costs and another $100 usd to cover for the cost of any other possible surcharges for and during the service(s) provided to Shipper and its shipment(s) by the Opus9 and Carrier (together “total charges”).
Opus9 requires this authorization at the time of booking to reserve the shipment. this charge will not show up on the credit card and is not considered a payment since the Opus9 shipment payment is initiated at best of the shipper. Shipper allows Opus9 credit card processor to store supplied credit card in an encrypted database for payment for shipment delivery.
Automated Clearing House (“ACH”) Authorization
Shipper allows Opus9 ACH processor to store any supplied ach account information in an encrypted database for payment of shipment delivery.
B. Shipment Payment
Upon delivery of shipment, Opus9 will send Shipper an invoice email which has details of the delivery, obfuscated ACH or credit card (“Payment Method”), the amount due (“total charges”) and a button, link or web page that when clicked by Shipper will trigger a payment of the total charges using the Payment Method to Opus9.
if Shipper chooses credit card, then Shipper card will be charged automatically after 72 hours of invoice become available with amount due. the Shipper agrees to pay invoice within the shipment payment terms unless Shipper has directly reported issue(s) (“dispute”) to Opus9 within 72 hours after Opus9 sends the invoice email to Shipper, and Opus9 considers the dispute(s) as “warranted”.
if Shipper choose ach and has not paid for shipment within the payment terms + 15 calendar days and no unresolved warranted disputes exists on the shipment, then the shipment is considered past due and Opus9 will charge the Shipper the amount of the total charges without further notification.
Payment Terms Applicable To Both Methods Of Payment
All payments will be in u.s. dollars. After payment, Opus9 will send you an electronic receipt of total charges.
Shipper must report any concerns or issues with the shipment within 72 hours after Opus9 sending the invoice email. Any claims regarding the shipment, after the 72 hours timeline, shall be deemed waived and Shipper shall be barred from raising any claim(s) for damages or loss, as well as Shipper’s right to contest, object, or reject the payment due amount and terms for payment.
Shipper hereby warrants to have the legal right to use, designate, and authorize Opus9 to process the designated credit card(s), and further warrants that any information used or needed to be used to initiate any transaction or payment that the Shipper provides Opus9 or its third-party payment processor is accurate, current, and complete. Shipper must immediately notify Opus9 of any change in their billing address of the credit card or ACH information that is used for payment.
In addition to the charges imposed or levied by Opus9, Shipper agrees to pay Opus9 any surcharges that is imposed by Carrier on the Shipper’s booking, shipment, or the transportation service(s) regardless of the nature or types or prior notice of the charges. Shipper shall fully hold harmless and indemnify any charges that Carrier impose or levy on Opus9 so long as such charge is related to the Shipper’s shipment or booking.
In case of any surcharges or penalties imposed by Carrier on the Shipper’s shipment or booking, Shipper shall make such payment directly to Opus9 who then agrees to settle the same with the Carrier.
Please refer to Opus9 website for the list of potential surcharges.
Shipment Payment Terms
The credit card settlement process is as follows, three (3) business days after invoice ready, unless Shipper has separately applied and qualified for different payment terms, Opus9 shall be authorized to process the total charges from the said credit card.
For Automated Clearing House (“ACH”) payments for shipments, Shipper’s default term is seven (7) business days after invoice ready, unless Shipper has separately applied and qualified for different payment terms. Once the Shipper’s payment terms expire, the invoice is considered delinquent, and will be auto-charged 15 days after the terms expire.
If Shipper provides both ACH and credit card information to Opus9, Opus9 reserves the right to choose the payment method, and, if necessary, electronically credit the Shippers account to correct erroneous debit(s) or payment(s).
Shipment Cancellation Fee
Shippers shall be able to cancel the booking 24 hours before the pickup date. within 24 hours, Opus9 may charge a truck-order-not-used fee of $250 for truck load, $50 for Less Than Truck Load and drayage.
For any billing issues Shipper must contact email@example.com within 72 hours of Opus9 sending invoice email to Shipper, to dispute any shipment charges.
Shipper shall not directly make any payment to Carrier. If Shipper does make the payment directly to Carrier, Shipper agrees that Opus9 shall still have the right to demand and receive the due payment from Shipper even if it means double payment.
C. General Payment Terms
Freight is earned at the time of consummation of the delivery service between Shipper and Carrier (evidenced by Opus9 issuing the applicable Bill of Lading or when Carrier accepts the booking, whichever happens earlier), not at the completion of the delivery. Any issues, losses, damages, disputes or claims (“damages”) are not subject to setoff or cause any kind of reduction from the said freight amount.
Detention and Layover
If the Carrier arrives at Origin within the scheduled pickup time and is not able to pick up the Shipment reasonably immediately, the Carrier shall wait for two (2) hours before the detention charge could start (which will be calculated by an hourly increment) and be measured by the Carrier’s own account or system (including but not limited to ELD (Electronic Logging Device), or by Carrier contacting the Opus9 about the timing.
If the Carrier arrives at Destination within the scheduled delivery time and is not able to deliver the Shipment, the Carrier must wait for two (2) hours before the detention could start (which will be calculated by an hourly increment) and be measured by the Carrier’s own account or system (including but not limited to ELD), or by Carrier contacting the Opus9 about the timing.
Detention is a charge imposed to Shipper when Carrier is held beyond the free time for loading (at Origin) or unloading the truck (at Destination). Shipper will incur an hourly incremental detention charges until the driver is able to pick up or deliver and leave the premises. Shipper agrees to be solely liable for and agrees to pay Opus9 any layover fee as a part of any detention or demurrage charges.
Whatever Carrier’s record says or otherwise determines to be the detention or demurrage charges to Shipper shall be the measuring standard, unless Shipper can clearly prove with the written document and supporting data of the error by Carrier in measuring or imposing such charges. Opus9 will not be required to prove or substantiate such charges when Shipper questions or objects to the exact timing or DET/DEM charges.
Shipper also agrees they are responsible for payment of all taxes for which they are liable in any jurisdiction in accordance with the applicable rules and regulations. Opus9 is not responsible for collecting, reporting, paying, or remitting any such taxes for nor on behalf of the Shipper. “Taxes” also includes any applicable duties, sales or use taxes, and other taxes that may be levied in connection with a transaction contemplated by this Agreement.
Custom and Holds
For Drayage, containers are considered available after Customs Clearance and removal of all Holds (such as Ocean Carrier Holds due to Freight or Bill of Lading, USDA Holds, etc.). Opus9 will not be responsible for any Container Demurrage / Detention charges at Terminals prior to Pick-Up. This must be settled by Shipper prior to pick-up.
Shipper shall be billed for Dry Runs if Opus9 is unable to schedule delivery/pick-up using the contact information provided.
Opus9 may change pricing for the Service from time to time in its sole discretion by updating the Site without any additional notice to or consent from Shipper or Carrier.
Shipper shall not circumvent payments for scheduled or completed Shipments in any way. As the freight payment to OPUS9 is earned at the time of consummation of the carriage service between Shipper and Carrier, no Payments by Shipper or charges shall be refundable or subject to offset.
Any amount that Shipper fails to pay Opus9 when due shall incur and accrue the interests up to eighteen percent (18%) per annum (prorated daily) or the maximum rate permitted by applicable law, whichever is more, from the due date until paid.
IV. FREIGHT LOSS OR DAMAGE
A. Freight Loss or Damage.
Shipper acknowledges that Opus9 is not liable for any loss, damage, delay, destruction or theft arising directly or indirectly from or during the transportation (including the storage status) of the Shipment. Opus9 is not liable for damages or loss due to natural disasters, force majeure event (‘force majeure’ as governed by the terms of Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706) (“Carmack”), or any other causes that is beyond Opus9’s reasonable control.
For any claims involving Shipment or the transportation service (or its failures) whether by Carrier, Shipper, or any other User, Shipper acknowledges and agrees that Opus9 shall not be a part of nor be responsible for any claims, disputes, or damages involving the Shipment or the transportation service for the shipment (including the storage status), not only under Carmack, or FMCSA, but also under any tort principle and other civil or administrative rules and regulations. Shipper further acknowledge and agree to resolve any and all claims solely against Carrier, without involving or including Opus9, and further that Shipper shall hold harmless and indemnify Opus9 from any and all claims (including third party claims), demands, any kind of legal action, as well as any costs or expense of defending such claims (including attorneys and legal fees).
Shipper or User should know and understand that Carrier may have its own applicable terms and procedures regarding its claims and liability, including cargo claim. For any claims and liabilities against the Carrier, Shipper must check with the Carrier terms. Carrier, however, shall not materially deviate from the industry practice(s), or the terms of Carmack and Federal Motor Carrier Safety Administration’s Principles and Practices for the Investigation and Voluntary Disposition of Loss and Damage Claims and Processing Salvage”, 49 C.F.R. Part 370 (“FMCSA Rule”) in which case, Shipper’s remedy or claim shall solely be against Carrier for any loss, damage, delay, destruction, theft or liability of whatever nature arising from the transportation services in accordance with the applicable provisions of the applicable Carmack or FMCSA Rule.
Carrier and Shipper agree that pursuant to 49 U.S.C. § 14101(b) they hereby expressly waive all rights and remedies under Title 49 of the U.S. Code that conflict with, affect, or modify the terms and conditions of this User Agreement.
B. Cargo Loading, Unloading, and Securement.
Shipper is solely responsible for loading, unloading, and securing the cargo(s) it seeks to move under this Agreement. Shipper shall be time barred and agrees to waive any claims for damages or liabilities unless Shipper commence the formal legal action against Opus9 within nine (9) months from the date of the incident.
V. BILLS OF LADING
Opus9 will generate and send via email a Bill of Lading document for Shipper and Carrier to use for each Shipment, in lieu of preparing a Bill of Lading of its own. Shipper cannot use their own Bill of Lading for Shipment but rather Shipper agrees to only use or utilize the Bill of Lading provided by Opus9.
Shippers and Carriers should read the Bill of Lading Terms and Conditions carefully to better understand their rights and liabilities.
Shipper agrees and understands that it is responsible for maintaining the confidentiality of passwords associated with any account it uses to access the Opus9 Service. Accordingly, Shipper agrees that it is solely responsible for all account usage of Services. If Shipper becomes aware of any unauthorized use of its password or of its account, it agrees to notify Opus9 immediately.
A. Service Usage. Subject to the terms of this Agreement, Opus9 grants Shipper a non-transferable and non-exclusive license to use the Services for its internal business use during the term of this Agreement.
B. Restrictions. The rights granted to Shipper in this Agreement are subject to the following restrictions: (i) Shipper shall not, nor cause another to, license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service; (ii) Shipper shall not, nor cause another to, modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (iii) Shipper shall not, nor cause another to, access the Service in order to build a similar or competitive service; and (iv), except as expressly stated herein, Shipper may not, nor cause another, copy, reproduce, distribute, republish, download, display, post, or transmit in any form or by any means any part of the Service. All future releases, updates, and other additions to the functionality of the Service shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Service content must be retained on all copies thereof.
C. Limited Support. Shipper may contact Opus9’s support center for any technical or operational issues arising from the use of the Service, but Shipper takes any responsibility for any subsequent actions with said support.
A. Ownership. Excluding its User Content, defined in Section IX. USER CONTENT, Shipper acknowledges that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Service are solely owned by Opus9 or third-parties that Opus9 expressly authorized outside of this Agreement. The provision of the Service does not transfer to Shipper or any third party any rights, title, or interest in or to such intellectual property rights. Opus9 and its suppliers reserve all rights not granted in this Agreement.
B. Modification. Opus9 reserves the right, at any time, to upgrade, modify, suspend, or discontinue the Service or any part thereof with or without notice. Shipper agrees that Opus9 will not be liable to User or to any third party for any modification, suspension, or discontinuance of the Service or any part thereof. See Section XVII. GENERAL (A) below for additional terms governing revisions.
C. Feedback. If Shipper provides Opus9 any feedback, suggestions, bug reports, system errors, and other information or ideas regarding the Service (“Feedback”), Shipper hereby assigns and authorizes to Opus9 all rights in the Feedback and agrees that Opus9 shall have the right and discretion to act upon and use such Feedback and related information in any manner it deems appropriate. Opus9 will treat any Feedback User provides to Opus9 as non-confidential and non-proprietary. Shipper agrees that it will not submit any information or ideas to Opus9 that it considers confidential or proprietary.
IX. USER CONTENT
A. User Content. “User Content” means all information, data, and other content a User submits to or uses with the Service. Each User is solely responsible for its User Content. User assumes all risks associated with the use of its User Content, including any reliance by others on its accuracy, completeness, or usefulness, or any disclosure of its own User Content that makes that User or any third party personally identifiable. Each User hereby represents and warrants that its User Content does not violate the Acceptable Use Policy, defined in Section X. ACCEPTABLE USE POLICY. To avoid doubt, User Content may include third-party content that User submits. User agrees not to submit third-party content unless it has the consent of the applicable third-party owner of such content. User may not state or imply that its User Content is in any way provided, sponsored, or endorsed by Opus9. Because each User alone is responsible for its User Content (and not Opus9), User may be exposed to liability if, for example, its User Content violates the Acceptable Use Policy. Because Opus9 does not control User Content, User acknowledges and agrees that Opus9 is not responsible for any User Content, and Opus9 makes no guarantees regarding the accuracy, currency, suitability, or quality of any User Content and assumes no responsibility for any User Content or any reliance upon it.
B. User Content License. User grants, and it represents and warrants that it has the right to grant, to Opus9 an irrevocable, nonexclusive, royalty-free, and fully paid, sublicensable, worldwide license, to use User’s User Content solely for the purposes of including its User Content in the Service and to create Anonymous Data. All rights in and to the User Content not expressly granted to Opus9 in this Agreement are reserved by User.
C. Creation of Anonymous Data. Opus9 may create anonymous data records (“Anonymous Data”) from User’s User Content by using commercially reasonable efforts to exclude any and all information (such as company name) that makes the data identifiable to any particular User. Opus9 may use and disclose Anonymous Data for any commercial purpose, and also outside of this Agreement, including but not limited to developing any products or services to be or actually being provided by Opus9.
D. Certain Disclosures. Opus9 may share User’s User Content (i) with Opus9’s third-party service providers; (ii) with the acquiring company if another company acquires User’s company, business, or its assets, including through bankruptcy; and (iii) to comply with relevant laws, to respond to served subpoenas or warrants, to protect or defend Opus9 or its User’s rights or property, and/or to investigate or assist in preventing any violation or potential violation of the law or this Agreement.
X. ACCEPTABLE USE POLICY
A. User agrees not to use, or cause another to use the Service to collect, upload, transmit, display, or distribute any User Content that (i) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) is unlawful, harassing, abusive, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (iii) violates any rule, law, or regulation or any obligation or restriction imposed by any third party.
B. User agrees not to use, or cause another to use the Service to: (i) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) harvest, collect, gather or assemble information or data regarding other Users, including email addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Service or violate the regulations, policies, or procedures of such networks; (v) attempt to gain unauthorized access to the Service or other computer systems or networks connected to or used together with the Service, through password mining or other means; (vi) harass or interfere with another User’s use and enjoyment of the Service; or (vii) introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests, and queries, or to strip, scrape, or mine data from the Service.
C. Opus9 reserves the right in its sole discretion to review any User Content, investigate, and/or take appropriate action against any User (including removing or modifying User’s User Content, terminating User’s Account in accordance with Section XI. TERM AND TERMINATION below and/or reporting User to law enforcement authorities) if User actually violates or reasonably believed to have violated any provision of this Agreement or other related policies of Opus9, or otherwise creates damage, loss, or liability for or to Opus9 or any of its agent or employee or contractor.
XI. TERM AND TERMINATION
Subject to the provisions of this Section, this Agreement will remain in full force and effect while Shipper uses the Service. Opus9 may, at any time and without notice, in its sole discretion, limit, suspend, or terminate (eg. blocking the use or access to the Opus9 platform) this Agreement if (i) Shipper has breached any provision of this Agreement (or has acted in a manner that clearly shows User does not intend to, or is unable to, comply with this Agreement); (ii) Opus9 is required to do so by law (for example, where the provision of the Service is, or becomes, unlawful); (iii) Opus9 has elected to discontinue the Service as described above; or (iv) Opus9, in its sole discretion deems any involved transaction(s) may adversely affect the Opus9 Service or its operation. In any such case, Opus9 will have no liability or penalty, no matter however foreseeable they are, whatsoever to User for any limitation, suspension, or termination of this Agreement, the Service, and deletion or termination of User’s Account or the User Content or information. Following termination of this Agreement, Sections VII. LICENSES (C) and VIII. OWNERSHIP to XVII. GENERAL will remain in effect.
In addition to other indemnities expressly provided in this Agreement, each User and, in case any claim(s) involving a Opus9 Bill of Lading, all named shipper, consignee, and the Carrier on the applicable Bill of Lading shall, jointly and severally, be liable and agrees to defend, indemnify, including for costs and attorneys’ fees, and hold Opus9 and its officers, employees, and agents, harmless from and against any claim or demand made by any third party due to or arising out of User’s (i) use of the Service; (ii) User Content; (iii) interaction with any other User; (iv) violation of this Agreement; (v) violation of applicable laws or regulations; or (vi) User’s Shipment contents (if you are a Shipper) or User’s transportation Shipment services (if you are a Carrier), to the extent such claim or demand does not result solely and directly caused by the gross negligence or willful misconduct of Opus9. Opus9 reserves the right, at User’s expense, to assume the exclusive defense and control of any matter for which User is required to indemnify Opus9, and User agrees to cooperate with Opus9’s defense of or resolution of these claims. User agrees not to settle any matter without the prior written consent of Opus9. Opus9 will use reasonable efforts to notify Shipper of any such claim, action, or proceeding upon becoming aware of it.
In the event that a third party brings claim against Opus9 for any claim or damages related or involving Shipment or Carrier services, Shipper shall also defend, hold harmless, and indemnify Opus9 from or against any loss or damages (including reasonable attorney’s fees) as well as liabilities involving any such claim. Shipper shall act timely and reasonably in filing joinder or any other type of interpleader or impleader to bring in Carrier or other liable parties under this Agreement as the jointly liable party that will defend and hold harmless Opus9 against any such claim(s) by the third party.
XIII. DISCLAIMERS AND RELEASE
Subject to above XII. INDEMNITY, Opus9 makes reasonable effort to keep its Opus9 platform up, bug-free, and safe, but all users use it at their own risk. The service is provided “as is” and “as available,” and Opus9 (and its suppliers) expressly disclaim any warranties and conditions of any kind, whether expressed or implied, including the warranties or conditions of merchantability, fitness for a particular purpose, accuracy, or non-infringement. Opus9 (and its suppliers and subcontractors) make no warranty that the service: (a) will meet user’s requirements or expectations; (b) will be available on an uninterrupted, timely, secure, or error-free basis; (c) will be accurate, reliable, free of viruses or other harmful code, complete, legal, or safe; or (d) result in any revenue, profits, or cost reduction. the service may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Opus9 is not responsible for any delays, delivery failures, or other damage resulting from such problems.
Further, by using the service, Shipper or the shipments may be exposed to situations that are potentially dangerous, offensive, harmful, unsafe, or otherwise objectionable. Shippers use the service at their own risk. Users’ interactions with others and third parties are solely between or amongst those parties without including or involving Opus9. Shipper agrees that Opus9 will not be responsible for any loss or damage incurred as a result of or related to any such interactions between parties or involving shipment or Carrier, or Carrier’s shipping service(s). If there is dispute(s) between Shipper and any other user or third party, all involved Shipper or Carrier as well as any user will ensure that Opus9 shall not become involved, and agrees to jointly and severally defend, hold harmless, and indemnify Opus9 from any claim or liabilities as well as any damages, costs, and expenses (including attorneys fees) incurred by Opus9.
Also, subject to above XII. INDEMNITY, user hereby waives and releases Opus9 (and its suppliers, officers, directors, employees, agents, successors and assigns) from, and hereby waives and relinquishes, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), arising from user’s use of the service, or in any way related to other users or third parties.
If you as a user are a california resident, you hereby waive california civil code section 1542 in connection with the foregoing, which states: “a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” Some jurisdictions do not allow the exclusion of implied warranties. Accordingly, the above exclusion may not apply to you.
XIV. LIMITATION ON LIABILITY
In no event shall Opus9 (or its suppliers) be liable to User or any third party for any lost profit or any indirect, consequential (including but not limited to lost profit), exemplary, incidental, special, or punitive damages arising from or relating to this agreement or user’s use of, or inability to use, the service, even if Opus9 has been advised in advance of the possibility of such damages. Notwithstanding anything to the contrary contained herein, Opus9’s (and its suppliers’ or subcontractors’) liability to User for any damages arising from or related to this agreement or the service (for any cause whatsoever and regardless of the form of the action) will at all times be limited to and not exceed the aggregate of the amounts user has paid Opus9 in the prior 12 months (if less than 12 months, only to the actual timeline). The existence of more than one claim will not enlarge this limit.
Some jurisdictions do not allow the limitation or exclusion of liability for incidence of consequential damages. Accordingly, the above limitation or exclusion may not apply to you as a user, and you may also have other legal rights that vary from jurisdiction to jurisdiction.
XV. THIRD PARTY SITES & ADS
The Service might contain links to third-party websites, services, and advertisements for third parties (collectively, “Third Party Sites & Ads”). These Third Party Sites & Ads are not under the control of Opus9, and Opus9 is not responsible for any Third Party Sites & Ads. Opus9 provides these Third Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Ads. Users use all Third Party Sites & Ads at their own risk. When User links to a Third Party Site & Ad, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. User should make whatever investigation User feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites & Ads.
XVI. COPYRIGHT POLICY AND PERSONAL INFORMATION PRIVACY
A. Copyright Policy.
Opus9 respects the intellectual property of others and asks all Users of its Service do the same. In connection with the Service, Opus9, based on its reasonable belief or discretion, has the right to remove any materials that would infringe the copyright(s) of Opus9 or any third party. If you as a User believe that one of Opus9’s Users is, through the use of the Service, unlawfully infringing the copyright(s) in a work and wish to have the allegedly infringing material removed, the following information in the form of a written notification, pursuant to 17 U.S.C. § 512(c), must be provided to Opus9 by emailing firstname.lastname@example.org.
B. Personal Information Privacy
B. Dispute Resolution. Any claim, cause of action, or dispute (claim) involving or arising out of or relating to this Agreement must be brought exclusively in a state or federal court located in the State of New York. The laws of the State of New York will govern this Agreement, as well as any claim that might arise between or amongst Shipper, Carrier, and Opus9, without regard to conflict of law provisions. Shipper agrees to submit to the personal jurisdiction of the courts located in New York for the purpose of litigating all such claims.
C. Force Majeure. Any delay in the performance of any duties or obligations of any party to this Agreement (except the payment of money owed) will not be considered a breach of this Agreement due to Force Majeure which is defined as any extraordinary and unpredictable event or circumstance or combination of events or circumstances whenever occurring which in each case: (i) is beyond the reasonable control of the affected Party; and (ii) actually prevents, wholly or in part, the performance of a Party’s obligations under this Agreement that may include acts of God, acts of public enemies, war, restraint of governments, riots, insurrections, acts of terrorism, power outage, acts of nature such as flood, fire, earthquake, tidal waves or tsunamis, blockade, labor dispute, strike or shortage.
D. Entire Agreement. This Agreement and other incorporated terms and policies constitute the entire agreement between you as User and Opus9 regarding the use of the Service. Opus9’s failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means including without limitation. This Agreement may be executed in counterparts.
E. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
F. No Agent. Neither party is an agent or partner of or a joint venture with the other. Shipper or Carrier or any User shall not assume, create, or incur any liability or obligation of any kind, express or implied, against, in the name of or on behalf of Opus9.
G. Assignment. Unless otherwise provided in this Agreement, this Agreement, your benefits and other rights and obligations herein as User, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Opus9’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
H. Press. Unless otherwise restricted by you or by the force of the law, you as User hereby grant Opus9 permission to identify you as a customer of Opus9 or user of its Service and to reproduce your name and logo on the Site and in any other marketing materials.
J. Copyright/Trademark Information. All trademarks, logos, and service marks (“Marks”) displayed on the Service are Opus9’s property or the property of other third parties. You as User are not permitted to use these Marks without Opus9’s prior written consent or the consent of such third party, which may own the Marks.
K. Communications. The communications between you and Opus9 uses electronic or physical mail. For contractual purposes, you as User (i) consent to receive communications from Opus9 in an electronic or physical form. User accepts that Electronic communication is equivalent to physical communication.
L. Contact Information
Logis9 (dba Opus9)
Address: 440 N. Wolfe Rd. #282, Sunnyvale, CA 94085 USA